Victorian AG urged to look at state impact of Norrie decision

THE Victorian opposition has called on the State Government to investigate the current legal status of gender recognition in Victoria, in the wake of a High Court decision to allow Norrie to register as “non-specific” gender.

The High Court ruled last week against the NSW Registrar of Births, Deaths and Marriages’ challenge, which sought to overturn Norrie’s successful battle in the NSW Court of Appeal. The Court of Appeal had previously found state law could recognise additional gender options beyond “male” and “female”.

On Thursday, Western Victoria upper house Labor MP Jaala Pulford urged Attorney-General Robert Clark to consult with the LGBTI community and the Office of Births, Deaths and Marriages to determine how to apply the High Court’s decision to Victorian legislation.

“I call on the Attorney-General to… urgently consult with the lesbian, gay, bisexual, transgender and intersex community, and the Office of Births, Deaths and Marriages, and report to the Parliament on how to apply the High Court principle to Victorian legislation to ensure that gender diverse people are recognised and treated equally not only for birth certificates but in the wider operation of Victorian laws and administrative actions,” Pulford told the Legislative Council.

Pulford said the High Court’s decision provided impetus for this change, putting the issue of gender documentation on the map for state parliaments.

“What would be a bit of a waste of everyone’s time, money and effort would be for every state to have to go and re-establish this right or this decision in the High Court. I think the Norrie case demonstrates that it’s now time to recognise the issue and to respond,” Pulford told the Star Observer.

Pulford did not believe the Attorney-General’s conservative position on some LGBTI issues would stifle support for the issue in Victorian Parliament. Clark once called homosexuality “destructive” and “harmful” in parliament, comparing same-sex sexual activity to smoking cigarettes.

The Star Observer contacted the Attorney-General for a response but Clark’s office declined to confirm whether the Victorian Government would investigate the impacts of the Norrie ruling or consult with the LGBTI community. The questions were referred to the Department of Justice.

“The Victorian Births Deaths and Marriages Registration Act 1996 requires the collection of information regarding a person’s sex, which is either male or female. The law also provides for amendment of the register in relation to the person’s sex,” a department spokesperson told the Star Observer.

Anna Brown from the Human Rights Law Centre welcomed Pulford’s calls for reform, and said the situation in Victoria needed to be investigated thoroughly before specific changes could be considered.

“I have not yet carefully considered the legal position in Victoria but I think we can say that a legal challenge in Victoria by someone in a similar position to Norrie now has greater prospects of success,”Brown told the Star Observer.

“However, it’s important to note the Victorian laws do contain slightly different wording and our laws would need to be looked at in their particular context.”

Transgender Victoria executive director Sally Goldner told the Star Observer the organisation would be happy to work with the Attorney-General as part of a consultation process. Goldner stressed the importance of distinguishing the principles of the High Court decision from the possibility of legally realising those principles.

“[The High Court decision] certainly opens the door that says change needs to happen, but it’s whether it could happen under laws as they stand now or whether there needs to be a revision that results in all trans* and gender diverse ending up with a birth certificate that reflects who they are,” Goldner said.

Organisation Intersex International (OII) Australia vice president Tony Briffa praised Victorian Labor for raising the issue so soon after the High Court decision.

“I commend them for being so proactive and look forward to working with them to ensure any new gender categories are inclusive of all gender diverse people, and that those categories do not apply to children until they can provide consent,” Briffa told the Star Observer.

Prior to the High Court decision, OII Australia had been concerned the creation of a third category of “intersex” would result in children born intersex having the category forced on them.

The Norrie decision has sparked discussion of legal gender recognition around the country, with the Northern Territory’s Registrar-General David Lisson arguing a third gender category of “indeterminate” was already available in the territory.